Gordon v. State, SC96834.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 780 So.2d 17
• Parties: Bryon GORDON, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: No. SC96834.,SC96834.
• Decision Date: 22 February 2001

780 So.2d 17

Bryon GORDON, Petitioner,
v.
STATE of Florida, Respondent

No. SC96834.

Supreme Court of Florida.

February 22, 2001.

780 So.2d 18

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner

Robert A. Butterworth, Attorney General, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, FL, for Respondent.

PER CURIAM.

We have for review a decision on the following question certified by the Fifth District Court of Appeal to be of great public importance:

DOES THE DOUBLE JEOPARDY CLAUSE PRECLUDE CONVICTING AND SENTENCING A DEFENDANT ON CHARGES OF ATTEMPTED FIRST DEGREE MURDER, CAUSING BODILY INJURY DURING A FELONY, AND AGGRAVATED BATTERY CAUSING GREAT BODILY HARM?

Gordon v. State, 744 So.2d 1112 (Fla. 5th DCA 1999). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the negative and approve the decision of the Fifth District.

PROCEDURAL AND FACTUAL BACKGROUND

Bryon Gordon (Gordon) seeks review of multiple convictions on double jeopardy grounds. Gordon was charged with attempted first-degree murder with a firearm (Count I), causing bodily injury during a felony with a weapon (felony causing bodily injury) (Count II), aggravated battery causing great bodily harm with a firearm (Count III), and robbery with a firearm (Count IV). Counts I and II are both life felonies. See §§ 782.04(1)(a), 777.04(4)(b), 775.087(1)(a), 782.051(1), Fla. Stat. (1997). Count III is a first-degree felony. See §§ 784.045(1)(a)1, 775.087(1)(b), Fla. Stat. (1997). Count IV is a first-degree felony punishable by life in prison. See § 812.13(2)(a), Fla. Stat. (1997).

At trial, the evidence established that Gordon confronted the alleged victim, Michael Friedman, with a gun, punched him in the face, and demanded his money. After Friedman resisted, Gordon shot him in the side while simultaneously grabbing his wallet.

At the close of the State's case, Gordon moved for a judgment of acquittal, arguing that Count III was subsumed within Count I. The trial court, concluding that the State had satisfied its burden, denied the motion. Gordon renewed his motion at the close of all the evidence, contending that "there was one gunshot, and we have three crimes basically charged for the same offense." The trial court responded, "Well, I think they can do that."

The jury returned verdicts of guilty as charged on the four counts. The trial court announced that Gordon would be adjudicated guilty as to those four charges, but requested argument regarding whether, for purposes of sentencing, Counts II and III were subsumed in Count I. At the sentencing proceeding, the trial court indicated that it was inclined to rule that Counts II and III were subsumed in Count I because there was a single gunshot that "caused all the damage." Although the

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State recognized that Count II might be subsumed in Count I, it contended that Counts I and III were separate offenses. The trial court reiterated that it would adjudge Gordon guilty of all four charges, but concluded that it would not sentence him on Counts II or III. Accordingly, the trial court sentenced Gordon on Count I (attempted first-degree murder) to 276 months with a minimum mandatory term of three years, and on Count IV (robbery with a firearm) to 60 consecutive months (for a total of 336 months) with a consecutive mandatory term of three years

Gordon appealed to the Fifth District Court of Appeal, arguing that his convictions for Counts II and III should be vacated because they were subsumed in Count I. Gordon further argued that the sentence imposed on Count I should be reduced because points were added on his guidelines scoresheet to reflect the convictions on Counts II and III, even though the judge did not impose separate sentencing orders on those counts. The State, in its brief filed in the Fifth District, accepted Gordon's statement of the facts, expressly noting that it "does not dispute that these convictions resulted from a single incident where one shot was fired."

The Fifth District affirmed the four convictions and remanded for imposition of sentence on Counts II and III. See Gordon v. State, 744 So.2d 1112 (Fla. 5th DCA 1999). In its recitation of the facts, the Fifth District stated:

The victim testified that the Defendant held a gun to his side, demanded his wallet, punched him in the face, then shot him while the wallet was being removed from his pocket. The injuries from the gunshot were life-threatening and left the victim scarred for life; there was no evidence of any injury from the punch to the face.

Id. at 1113. The court recognized that attempted first-degree murder requires an intent to kill, while felony causing bodily injury does not. See id. at 1114. Similarly, felony causing bodily injury requires bodily injury, while attempted first-degree murder does not. See id. The court rejected Gordon's argument that Counts I, II, and III were merely degrees of the same offense. Rather, the court concluded that they were aimed at punishing different evils: attempts to kill and the acts of physically injuring someone. See id. The court further noted that the Legislature effectively had overruled Carawan v. State, 515 So.2d 161 (Fla.1987), and that this Court later recognized that multiple punishment for separate offenses could be imposed based on a single act. See id. at 1115 & n. 9. Accordingly, the Fifth District held that Counts II and III were not subsumed in Count I and certified the aforementioned question as one of great public importance. See id. at 1115.

PRIOR DOUBLE JEOPARDY CASELAW

The Double Jeopardy Clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense.¹ The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature "intended to authorize separate punishments for the two crimes." M.P. v. State, 682 So.2d 79, 81 (Fla.1996); see State v. Anderson, 695 So.2d 309, 311 (Fla.1997) ("Legislative intent is the polestar that guides our analysis in double jeopardy issues...."). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger² test, as

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codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist. See Gaber v. State, 684 So.2d 189, 192 (Fla.1996) ("[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section 775.021(4) ... is the sole method of determining whether multiple punishments are double-jeopardy violations.") (footnote omitted). Section 775.021 provides

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021, Fla. Stat. (1997). Thus, the Blockburger test, or "same-elements" test, inquires whether each offense has an element that the other does not. See State v. Craft, 685 So.2d 1292 (Fla.1996); Richardson v. Lewis, 639 So.2d 1098, 1099 (Fla. 2d DCA 1994). If so, then they are considered separate offenses, and the defendant may be convicted and punished for each offense. Several cases have involved a straightforward application of this statute, that is, examining the statutory elements of each offense to determine whether the offenses may be considered separate. See Gaber, 684 So.2d at 189-90; Johnson v. State, 689 So.2d 1065 (Fla.1997) (holding that armed trespass and grand theft convictions did not constitute double jeopardy); State v. Maxwell, 682 So.2d 83, 84 (Fla.1996); State v. Johnson, 676 So.2d 408, 409-10 (Fla.1996); Jones v. State, 608 So.2d 797 (Fla.1992); McAllister v. State, 718 So.2d 917 (Fla. 5th DCA 1998); Billups v. State, 690 So.2d 1381 (Fla. 1st DCA 1997); Hamrick v. State, 648 So.2d 274 (Fla. 4th DCA 1995) (discussing legislative intent to punish multiple offenses resulting from a single act).

The application of the statutory exceptions, however, is more complex. At issue in the present case is the construction of the second exception—offenses which are degrees of the same offense as provided by statute.³ We addressed varying degrees of crimes in Johnson v. State, 597 So.2d 798 (Fla.1992). In that case, the defendant was convicted of both grand theft of property and grand theft of a firearm for snatching a purse containing both cash and a firearm. See id. at 799. We concluded that the value of the goods or the taking of a firearm merely defined the degree of the felony and did not constitute

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separate crimes. See id. In State v. Thompson, 607 So.2d 422 (Fla.1992), we adopted the lower court's opinion, holding that dual convictions for fraudulent sale of a counterfeit controlled substance and...